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The interesecton of the Note of Issue and timely summary judgment motionOctober 10, 2018

Khan v Macchia, 2018 NY Slip Op 06519 (2d Dept. 2018)

(1) “In March 2016, the plaintiff filed a note of issue, accompanied by an affirmation of her counsel which stated, inter alia, that while discovery was not complete and the depositions of all parties were still outstanding, the note of issue and certificate of readiness were being filed in order to comply with the part rules of the assigned Justice. At a subsequent conference, a Court Attorney Referee (Anna M. Grimaldi, Ct. Atty. Ref.), so-ordered a stipulation which directed that Macchia’s deposition was to be held on July 20, 2016, and the City’s deposition was to be held on July 22, 2016. On July 8, 2016, Macchia moved for leave to extend her time to file a summary judgment motion until 120 days after completion of discovery. The Supreme Court denied the unopposed motion, and Macchia appeals.”

(2)  [Court discussed 202.21(d) and (e) involving post Note of Issue discovery]

(3) “Here, it appears that Macchia did not comply with either method, but, because depositions of the parties had not yet been conducted, the Court Attorney Referee so-ordered a stipulation which directed that further discovery take place beyond the date that summary judgment motions were to be filed. Given the Court Attorney Referee’s implicit consent to the basis for the extension of the time to move for summary judgment, Macchia reasonably believed that the deadline for summary judgment motions would likewise be extended. Thus, under these particular facts and circumstances, we find that Macchia demonstrated good cause for allowing an extension of time to move for summary judgment”

(4) “We nevertheless remind counsel and the courts supervising discovery that provisions for the timely completion of discovery and the filing of motions for summary judgment are not mere suggestions, and noncompliance with those provisions should not readily be excused.”

As long as counsel is forced to file premature NOI’s, this will continue to happen.  Perhaps the uniform rules need to be amended to compel the striking of an NOI upon timely application when discovery is not completed.

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